The School of Law hosted a forum yesterday where three professors considered the legality of several U.S. policies that have emerged in the aftermath of last year's terrorist attacks.
Scott Silliman, director of the Center for Law, Ethics and National Security, spoke on the United States' treatment of those detained in connection with the attacks. Silliman criticized holding non-resident aliens at Cuba's Guantanamo Bay and said he was disturbed by the possibility that they will be prosecuted by military commission. If the prosecution takes place outside the United States, federal courts have no jurisdiction to review the denial of habeas corpus--the right to be protected from illegal imprisonment.
"So where will we have commissions if we have them?" Silliman asked. "Why are we building and enlarging the facilities at Guantanamo Bay, which is in Cuban sovereign territory?"
In addition, Silliman questioned President George W. Bush's decision that members of al Qaeda and the Taliban are not prisoners of war under the Geneva Convention and therefore are not entitled to the benefits under the convention.
Linking the current situation with Iraq to the attacks against Afghanistan in the months immediately following Sept. 11, Associate Professor of Law Michael Byers examined the legitimacy of U.S. retaliation under international law.
"The United States was quite clearly going to attack al Qaeda and the Taliban regardless of what international law said, but it was quite clear... that they would do so more effectively if they could carry a large number of allies with them," Byers said.
The United States garnered international support for its attacks against Afghanistan by invoking the right to retaliate against an armed attack as outlined in Article 51 of the United Nations charter. In this case, the U.S. applied the definition of an armed attack to the terrorist attacks of Sept. 11.
The controversy over the U.S. right to attack in Iraq, however, stems from the ambiguity over whether Article 51 precludes the right of a preemptive strike or covers the case of imminent threat.
"At the moment it's difficult to argue that [Bush's claim that preemptive strikes are justified] is consistent with existing international law," Byers said. "This is absolutely crucial... because it determines whether the United States' traditional allies will support the United States in any such action."
Madeline Morris, professor of law, spoke on proper jurisdiction over crimes of terrorism, asking whether they fall within the arena of international criminal law enforcement.
Morris noted that states are often the targets or sponsors of terrorism, inherently biasing such states' judicial processes regarding terrorism. This adds the complications of political biases to domestic jurisdiction.
"The impulse to internationalize justice processes in the area is an understandable--perhaps logical--response to the recognition that crimes of terrorism have a political component, and that crimes of international terrorism have an international political component," Morris said.
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